National High Court Decision 2006Nu2462 ( October 24, 2009)

New shares acquisition is subject to rejection of unfair calculation that reduces tax burden by purchasing assets at a higher price from a person with a special relationship.

The acquisition of new shares constitutes an act that unfairly reduces tax burden by purchasing assets from a person with a special relationship in excess of the market price, and constitutes an act subject to rejection of unfair calculation under Article 88(1)1 of the Enforcement Decree of the Corporate Tax Act, and the value of the new shares immediately

209Guhap1932 Revocation of Disposition of Corporate Tax Imposition

△ Heavy Industries Co., Ltd.

OO Head of the tax office

October 27, 2010

January 5, 2011

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s disposition of imposing corporate tax of KRW 100,677,449,880 for the business year 2000 against the Plaintiff on March 27, 2006 is revoked.

1. Details of the disposition;

A. On August 12, 1999, the Plaintiff acquired new shares of 23,514,000 won (hereinafter referred to as “the primary acquisition of new shares”) issued byCCA Co., Ltd. (hereinafter referred to as “CCA”), 117,570,000 won per share (hereinafter referred to as “the primary acquisition of new shares”), and on April 25, 2000, 8,505,577 shares issued byCCA (hereinafter referred to as “the primary acquisition of new shares”) to acquire 42,527,85,000 won (hereinafter referred to as “the secondary acquisition of shares”) in total, 160,097,885,000 won per share as corporate tax securities, and filed a report on the acquisition of new shares and the total amount of tax for investment loss for the business year 20,000 won (hereinafter referred to as “the second acquisition of new shares”).

B. The Defendant lent the form of capital increase for new stocks to the 1st and the 2nd acquisition of new stocks to determine that the Plaintiff’s total amount of the acquisition price of the said new stocks was provided free of charge and thus becomes subject to the avoidance of unfair act and calculation. The Defendant calculated the corporate tax base and tax amount for the 2000 business year on the premise that the said amount was included in the calculation of the interests recognized as the said amount, and calculated the corporate tax base and tax amount on the 2000 business year on March 27, 2006. The Defendant imposed corporate tax amount of KRW 107,65,2

C. The plaintiff's objection and filed an appeal with the Tax Tribunal on June 16, 2006. The Tax Tribunal revised the tax base and tax amount by excluding the total amount of the new stocks acquired from the person with a special relationship from the total amount subject to inclusion in the calculation of earnings and the amount subject to inclusion in the calculation of interest, and the remaining claims were dismissed. The tax Tribunal decided to dismiss them.

D. Accordingly, according to the decision of tax trial, the Defendant deemed that the first and second new shares acquisition act constituted a wrongful calculation under Article 52(1) of the Corporate Tax Act and Article 88(1)1 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 17826, Dec. 31, 2002; hereinafter referred to as the "former Enforcement Decree of the Corporate Tax Act"), and calculated the market price of the shares, which serves as the basis for calculating the profit portion forCC space aviation, as zero won, excluded the acquisition price of each new shares in this case from deductible expenses, and then corrected the disposition of reducing the acquisition price of each new shares in this case for the business year of April 3, 200 (including additional taxes) from the disposition of imposition of KRW 6,97,820,00 for 6,977,00,014 from the disposition of imposition of KRW 80,000 for 20 (hereinafter referred to as "the remaining portion of the disposition of imposition in this case").

[Ground of recognition] Facts without dispute, Gap evidence 1-1 to 3, Gap evidence 2, 3, Eul evidence 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Violation of Article 88(1)1 of the former Enforcement Decree of the Corporate Tax Act

(A) The issuance of new shares forCC Space Aviation is not only the capital transaction date stipulated in the Corporate Tax Act, but also the Plaintiff’s acquisition of new shares forCC Space Aviation does not affect the income ofCC Space Aviation. Therefore, it cannot be deemed that the acquisition of new shares does not constitute the subject of the avoidance of wrongful calculation under Article 88(1)1 of the Enforcement Decree of the Corporate Tax Act.

(B) If the shareholder’s act of acquiring new shares is treated as a transaction of assets between the issuing company and the shareholder, if there is a difference between the issue price of stocks and the amount of stock assessment under the tax law, it constitutes a high-value purchase of assets or a low-price transfer of assets, and thus, it would result in an unfair outcome subject to avoidance of wrongful calculation

(C) Article 88(1)8 of the Enforcement Decree of the Corporate Tax Act provides that Article 88(1)1 of the Enforcement Decree of the Corporate Tax Act shall not apply to the share of profits through capital transactions any longer.

(D) On the other hand, the first and second new shares acquisition act is a result of the Plaintiff’s efforts to avoid concerns about financial sanctions following the failure to pay forCC Space Aviation, and thus, it cannot be deemed that it constitutes an abnormal act lacking economic rationality.

(2) The calculation of the profit ratio as the basis for denial of wrongful calculation is unlawful.

(A) The market price of the shares, which serves as the basis for calculating the denied amount of the wrongful calculation due to the high-priced acquisition of new shares, shall be assessed as the value of the shares immediately after the payment of the capital increase. In this case, unless there is no actual transaction price, the market price shall be calculated according to the appraisal price or the supplementary assessment method under the Inheritance Tax and Gift Tax Act. However, the defendant did not calculate the market price in such a way as above. The appraised value of the accounting firm for the CCTV stocks immediately after the acquisition of each

(B) Since the value of old stocks that the Plaintiff had previously held has increased due to the payment of new stocks, such increase in value should be excluded from calculating the profit increase.

(3) Illegal imposition of penalty tax

(A) The existence of justifiable grounds

In light of the fact that the interpretation of the taxation method on the allotment of profits through the acquisition of new shares under the Corporate Tax Act cannot be deemed as a very reasonable interpretation, and that the defendant Cho Jong also did not have conviction in the application of the regulations on the calculation of unfair act and calculation, and the exclusion period of the disposition of imposition for the business year of 2000 has expired on March 27, 2006, where the exclusion period of the disposition of this case was imminent, thereby adding more penalty than the principal tax was added, and that there is a reason to consider the circumstance that the plaintiff caused the plaintiff to acquire the new shares 1 and 2, as to the 1 and 2 new shares, there is a justifiable reason for the plaintiff to neglect to report and pay corporate tax under Article 52 of the Corporate Tax Act and Article 88 (1) 1 of the Enforcement Decree of the same Act.

(B) Violation of the application of the additional tax rate

As the Enforcement Decree of the Corporate Tax Act was amended by Presidential Decree No. 17826 on December 30, 202, the rate of additional tax under Article 119(1) of the Enforcement Decree was reduced from 5/10,000 per day to 3/10,000 per day. Considering the legal nature of additional tax, the principle of equality under the Constitution, the interpretation of the Corporate Tax Act, etc., the additional tax rate of 3/10,000 per day after the amendment of the Enforcement Decree of the Corporate Tax Act should be applied.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

(1) On March 1994, the Space Aviation: (a) was established by investment in the aviation sector, such as the Plaintiff,CCAS Co., Ltd. (hereinafter “CCA”); (b) and (c) the operation of aviation business, space business, automobiles and mid-term transformation equipment business, and helicopter operation business; (c) from around 1996 to early 198, the Fund was financed by approximately KRW 270 billion with loans from financial institutions and issuance of corporate bonds, etc.; (d) around the end of 1997, the increase in interest burden on loans due to the increase in interest rates due to the increase in the financial market due to the increase in interest rates caused by the IMF foreign exchange crisis; (e) the increase in profitability in the aviation sector, such as the manufacture and sale of the aircraft day, which is the main product, led to the rapid increase in the financial structure, and (e) the increase in net loss per year thereafter, in order to raise operating funds on April 29, 1998.

(2) In the process of the government-led restructuring of the aviation industry in the latter part of 1998, the restructuring plan became final and conclusive that three companies, such asCCA, EE Air Industry Co., Ltd., and FF Heavy Industries Co., Ltd., should separate only the assets and liabilities of a certain ratio in the aviation business sector and establish one consolidated corporation in the form of investment in kind until the latter part of 1999, and the GGGG space industry Co., Ltd (hereinafter referred to as the "GGG space industry") is leading to its establishment.

(3) According to the above restructuring plan for the aviation industry, if only the assets and liabilities of the aviation sector are transferred, and if you transfer only a certain ratio of the assets and liabilities of the aviation sector, the remaining business sector remains a huge amount of debt incurred from the aviation sector, but the remaining business sector remains in an unfortuous and unfortunate situation, such as the remaining business sector and the space business sector cannot pay the interest accrued from the loans of financial institutions. Therefore, at the time, the remaining business sector after the restructuring of the aviation industry was examined as well as the reasons for liquidation after arranging the remaining business sector after the restructuring of the aviation industry.

On the other hand, the affiliate company of theCC Group did not guarantee only about 3.8 billion won debt of theCC Broadcasting except that the company company bears the guaranteed debt of about 3.8 billion won, and it did not guarantee almost about the debt of theCC Space Aviation, and even if it was in default, it did not have any particular effect on its existence. However, at the time, it was necessary for the chairperson of theCC Group to discharge the guaranteed debt of about 260.7 billion won as the president of theCC Group bears the guaranteed debt of the debt of the CCTV Broadcasting.

(4) In preparation for the future in the event of the liquidation ofCC Space Aviation, SDR ordered the CC’s representative director Kim J and the CC Group’s comprehensive planning office to take measures to ensure that it can liquidate the remaining assets in the state of default with the same level of debt as the remaining assets by using the company’s funds, such asCCA andCCA, for which it exercised the right of management as the highest manager, and by paying off the existing debt ofCCA with the funds raised therefrom.

"(5) 정DD의 위와 같은 지시에 따라 CC우주항공은 부채변제자금을 마련하여 잔존 자산과 부채를 통일한 수준으로 맞추기 위하여 유상증자를 계획하고, 1999. 8. 12. 주주배정방식으로 신주 8,000만 주를 주당 5,000원(액면가)에 발행하여 4,000억 원을 조 달하는 내용의 유상증자를 실시했는데, 당시 원고(지분 29.39%)는 117,570,000,000원, CC자동차(지분 17.64%)는 70,542,000,000원, CC정공(지분 11.76%)은 47,028,000,000 원, KK산업개발 주식회시{이하KK산업개발'이라 한다)(지분 4.83%)는 19,308,950,000원, 정DD(지분 3%)는 12,014,505,000원을 각 출자하여 위 유상증자에 참여하였고, 그 결 과 합계 266,463,455,000원의 자금을 조달하였다(이하 '이 사건 1차 유상증자'라 한다).", "당시 위 법인주주들 중 CC정공을 제외하고는 달리 CC우주항공의 부채에 대하여 보증 채무를 부담하고 있지 않았고, CC우주항공으로부터 출자를 받은 바도 없었으나, CC그룹 종합기획실 및 김JJ의 협조 요청에 따라 법인주주들이 CC우주항공의 손실을 분담하는 차원에서 이 사건 1차 유상증자에 각 참여하였던 반면, CC우주항공의 주식 지분 22.76%를 보유하고 있던 LLLLLLL라는 외국계 회사는 보유주식에 대한 유상소각이 예정되어 있다는 이유로, CC우주항공의 주식 지분 10.62%를 보유하고 있던 CC산업개발 주식회사(이하CC산업개발'이라 한다)는 CC그룹에서 사실상 계열 분리되었다는 이유로 각 위 유상증자 참여를 거절하였다.",(6) 이후 CC우주항공은 이 사건 1차 유상증자로 조달된 자금으로 금융권에 대한 부채 등을 변제하는 한편, 소위 빅딜 계획에 따라 1999. 10. 1. 항공사업 부문을 FF중공업, EE항공과 함께 설립한 GGGG우주산업에 현물 출자하여 그 지분 33.33%를 보유하게 되었고, 그 후 2000. 2. 16. 이를 CC자동차에 양도하였으며, 1999. 12. 28. 상용차 및 중기 트랜스미션 부문을 물적 분할하여 QQQQQ를 설립하고, 같은 날 그 출자지분을 제3자에게 양도하였으며, 2000. 2. 1. 우주사업 부문을 원고에게 양도하였고, 같은 해 4. 6. 위성사업 부문을 e-HD.com에 양도하였다.

(7) On the other hand, AD transferred all the shares (3,141,790 shares, 4.35% shares) ofCC Space Aviation (3,141,790 shares, and 4.35% shares) held on January 4, 200 to PP et al. and five employees, who are employees ofCC Space Aviation.

(8) However, since the first capital increase, in the assets evaluation process of the aviation sector invested in the GG space industry, additional debt was found that the first capital increase had not been anticipated at the time of the first capital increase. After the reorganization of the main business sector of theCC space aviation, management of theCC space aviation, such as DaD and KimJ, plans to offer new capital increase to meet the remaining assets and liabilities at the same level. On April 25, 2000, 200, 200 won per share of 5,00 won per share issued to 1,00 won per share of 2,00 won per share of 42,527,800,005,000 won per share of the Plaintiff (42.53%) at the time, 205, 2005, 301,705,751,751,751,761,75,761,75, and 94,000 shares of the company (CC).

(9) Meanwhile, at the time, theCC industry development, which held 3.61% of the shares in theCC Space Aviation, did not participate in the above capital increase due to the lack of cash liquidity, and individual shareholders, such as the PP, who acquired 4.35% of the shares from DaD, did not participate in the above capital increase.

(10) ADD has borne a large amount of obligation with respect to the obligation ofCC Space Aviation. At the end of July 1999, the amount of obligation was KRW 2,10.7 billion, but the latter part of August 12, 1999 after the issuance of new shares on the end of August 12, 1999 was repaid the debt amounting to KRW 70.1 billion, and around September 30, 1999 and the total amount of debt KRW 43.5 billion in the process of the physical division of the air sector around December 28, 199 and the new shares were transferred to the relevant business division in December 28, 200. The debt amounting to KRW 97.1 billion in total before and after the issuance of new shares on April 25, 200.

(11) 원고와 KK산업개발은 2000. 6. 9.경 CC우주항공 주식 전부를 CC우주항공 직원들인 정PP 등에게 주당 1원씩에 매도하였고, CC우주항공은 2000. 12. 28.경부 터 2001. 2. 14.경까지 CC자동차에 3회에 걸쳐 잔존자산 중 항공기 조립용 치구세트, 서산공장 부지, 도장설비 등을 합계 약 936억 원에 매각하였고, 2001. 4. 1.경 헬기사업 부문의 자산과 부채 각 32억 원 상당을 QQQQQ에 양도하였다.

(12) On September 28, 2001,CCA registered the dissolution on the 29th of the same month following the resolution of a provisional general meeting of shareholders. After the liquidation procedure, the remaining assets were distributed to all creditors of the company through the liquidation procedure, and the liquidation was completed on December 28, 2001. During the liquidation process, the creditors of the company were fully repaid their claims, and the Plaintiff,CCA, andCCA, a shareholder who invested inCC A space aviation through the acquisition of each new shares of this case, were treated as losses all of theCCA stocks held until then.

(13) The amount assessed by the accounting firm for one share ofCCA stocks on the basis of the assessment method provided for in the Enforcement Decree of the Inheritance Tax and Gift Tax Act shall be:

[Reasons for Recognition] Facts without dispute, Gap evidence 6, 10, 12 through 25 (including evidence attached with each number), Eul evidence 2 through 9 (including evidence attached with each number), the purport of the whole pleadings

D. Determination

(1) As to the first argument

(A) Whether Article 88(1)1 of the Enforcement Decree of the Corporate Tax Act is applied

Article 88(1) of the Enforcement Decree of the Corporate Tax Act provides that if a corporation purchases new stocks at a higher price than that of a company for the purpose of its acquisition by using new stocks at a higher price than that of a company for the purpose of its acquisition by using new stocks at a higher price than that of a company for the purpose of its acquisition by using new stocks at a higher price than that of a company for the purpose of its acquisition by using new stocks at a higher price than that of a company for the purpose of its acquisition by using new stocks at a higher price than that of a company for the purpose of its acquisition by using new stocks at a higher price than that of a company for the purpose of its acquisition by using new stocks at a higher price than that of a company for the purpose of its acquisition by using new stocks at a higher price than that of a company for the purpose of its acquisition by using new stocks at a higher price than that of a company for the purpose of its acquisition by using new stocks at a higher price than that of a company for the purpose of its acquisition by new stocks at a higher price than that of a new stock.

According to the above facts, the plaintiff's act of acquiring new shares and its related party's 2nd and second increase in the value of the 1st and second new shares was in progress due to the continued loss at the time of the 1st and second increase in the 1st and second increase in the 1st, and shareholders, including the plaintiff, participate in the above 2nd increase in the 1st and second increase in the 1st and second increase in the value of the 1st and second increase in the 2nd and subsequent to the 1st and second increase in the value of the 1st and second increase in the 2nd and subsequent to the 1st and second increase in the value of the 2nd and subsequent to the 1st and second increase in the value of the 2nd and subsequent to the 1st and second increase in the value of the 2nd and subsequent to the 1st and second increase in the value of the 1st and second increase in the assets of the 2nd and subsequent to the 2nd appraisal of the 1st and subsequent changes in the 2nd appraisal.

(C) Sub-decisions

Thus, the plaintiff 1 and 2's acquisition of new shares is an act that unfairly reduces tax burden by purchasing assets from a specially related person in excess of the market price, and constitutes an act subject to rejection of unfair calculation under Article 88 (1) 1 of the Enforcement Decree of the Corporate Tax

(2) As to the second argument

(A) As to the calculation of the profit sharing for theCC Space Aviation

1) The method of calculating the price that serves as the basis for setting aside the wrongful calculation.

Article 52 (2) of the Corporate Tax Act provides that "it shall be based on the prices applied or deemed as applicable to sound and common practices and commercial transactions between persons without a special relationship in the case of paragraph (1) of the same Article." Meanwhile, Article 89 (1) of the Enforcement Decree of the Corporate Tax Act provides that "if there is a price generally traded between persons with a special relationship and a third party who is not a person with a special relationship, such price shall be determined by the Presidential Decree." Article 89 (2) of the Corporate Tax Act provides that "if the price is clearly determined as applicable to a transaction with a third party who is not a person with a special relationship, the price shall be determined by the method of wrongful calculation" and Article 9 (2) of the Enforcement Decree of the Corporate Tax Act provides that "if the price is clearly determined as applicable to a transaction with a third party which is not a person with a special relationship, the price shall be determined as applicable to the transaction with a third party without a special relationship in the case of a particular market price determined as applicable to such transaction."

2) In the instant case, whether the Defendant’s determination that each of the instant new shares will be applied to a normal transaction is unlawful as zero won

6. In light of the following circumstances: ① The number of new shares issued by the Plaintiff were planned to uniformly liquidate its assets and liabilities so that no remaining space value can be settled; ② the number of new shares issued by the Plaintiff’s 1st and new shares purchased at the time of the 1st and new shares issued by the 5th and the 1st and new shares issued by the 5th and the 1st and new shares acquired at the time of the 1st and new shares issued by the 4th and the 1st and new shares acquired by the 1st and new shares issued by the 5th and the 1st and new shares acquired by the 5th and the 1st and new shares acquired by the 5th and the 1st and new shares acquired by the 1st and new shares issued by the 5th and the 1st and new shares acquired by the 1st and new shares issued by the 1st and new 4th and the 9th and new shares acquired by the 1st and new 4th and new 1st and new shares purchased by the 19th and outstanding shares.

Unlike the purchase of general assets whose value is determined at the time of acquisition, considering that the purchaser’s price of the purchase of new stocks per se changes in the price of the purchase of the new stocks at the time of the purchase of the new stocks, the market price of the stocks, which is the basis for calculating the denied amount of unfair calculation due to the high-priced acquisition of new stocks, shall be deemed to be the price immediately after the payment of the capital increase (see, e.g., Supreme Court Decision 2002Du7005, Feb. 13, 2004). Therefore, as long as the Plaintiff distributes profits equivalent to the above difference with the price of the new stocks immediately after the payment of the capital increase by the issuing company for the increase in the price of the new stocks, even if the increase in the value of the old stocks owned by the Plaintiff due to the purchase of new stocks by the Plaintiff, it is nothing more than the reflective interest, and it is not necessary to consider the profits calculated at the time of the calculation of the profits distributed forCC space aviation.

(C) Sub-decisions

If so, it cannot be said that the disposition of this case is erroneous as zero won in all of the stock values per stock after the payment of the first and second subscription price for new stocks of this case.

(3) As to the third argument

(A) Whether there exists a justifiable reason

In order to ensure the propriety of taxation, the penalty tax for underreporting and penalty tax for non-payment under the former Tax Act is a kind of administrative sanction imposed when a juristic person, who is a tax obligor, assumes an obligation to return a tax base and pay the amount of tax in good faith and neglects the performance of such obligation in order to secure the propriety of taxation. Such a sanction is not imposed where there is a justifiable reason to believe that it is not unreasonable for a taxpayer to be unaware of such obligation due to a conflict of opinion in the interpretation of the tax law beyond the scope of mere land or misunderstanding in the tax law, or where there is a circumstance where it is unreasonable for the taxpayer to reasonably present it, or where it is unreasonable to expect the relevant party to fulfill such obligation, etc. (see Supreme Court Decision 2002Du666, Aug. 23, 2002).

As seen earlier, Article 88(1)8 of the Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 15790, Dec. 31, 1998; Presidential Decree No. 88(1)8 of the Corporate Tax Act (amended by Presidential Decree No. 15790, Dec. 31, 1998) has been interpreted as applying Article 88(1)1 of the Enforcement Decree to the acquisition of high-priced new shares, even before adding the new shares to the type of wrongful calculation. Even according to the Plaintiff’s assertion itself, the Plaintiff appears to have known that the Plaintiff’s acquisition of new shares is likely to fall under Article 88(1)1 of the Enforcement Decree of the Corporate Tax Act. The Plaintiff, a large company in the domestic area, did not properly examine the business feasibility, future investment profits, and real value of shares, and did not provide a proper consideration of the Plaintiff’s acquisition of new shares in order to exempt it from the guarantee of theCC space aviation as the chairperson of theCC group’s corporate tax for the business year 20000 years.

(B) Whether the application of the additional tax rate is unlawful or not

Article 76 (1) 3 of the former Corporate Tax Act (amended by Act No. 7838 of Dec. 31, 2005) provides that an amount calculated by applying the formula of "interest rate prescribed by the Presidential Decree in consideration of the interest rate applied by financial institutions to overdue loans x period from the date following the due date of payment to the date of voluntary payment or notification x the due date of payment x an amount calculated by applying the formula of "interest rate prescribed by the Presidential Decree" shall be imposed as an additional tax. However, Article 119 (1) of the Enforcement Decree of the Corporate Tax Act was amended by Presidential Decree No. 17826 of Dec. 30, 202 (hereinafter referred to as the "Enforcement Decree of the Corporate Tax Act") and the above rate of additional tax was modified by "5/10,000 per day" to "3/10,000 per day", and Article 14 (1) of the Addenda is amended by Article 119 (1) of the former Enforcement Decree of the Corporate Tax Act to the due date of return for the first payment.

In a case where the interest rate prescribed by the Presidential Decree is changed from the date of voluntary payment or notification from the due date to the date of payment, it may be deemed that the financial institution should determine the interest rate prescribed by the Presidential Decree in consideration of the interest rate applied to overdue loans under Article 76 (1) 3 of the former Corporate Tax Act after such change. However, as a matter of principle, it is consistent with the principle of no taxation without law that the statute that serves as the basis for imposing additional tax should be the time limit for payment. As seen above, as long as Article 14 and Article 17 of the Addenda of the Enforcement Decree of the Corporate Tax Act of this case provide transitional provisions, it is consistent with the literal interpretation that Article 119 of the Enforcement Decree of the Corporate Tax Act does not apply to the case of this case where the statutory due date of return has already expired. Article 119 of the Enforcement Decree of the Corporate Tax Act of this case is merely the adjustment of the rate of additional tax, and Article 119 of the Enforcement Decree of the Corporate Tax Act is not different in calculating the penalty tax before and after the due date of the amendment.

(C) Sub-decisions

Therefore, the part of the disposition of this case imposing additional tax is legitimate.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.